Last May we reported on an appeal that had been filed with the U.S. Court of Appeals for the D.C. Circuit with respect to the FAA’s efforts to regulate the use of drones. We noted that there were some likely problems with the appeal, not the least of which was the fact that the FAA order being appealed wasn’t really an order. Rather, it was just an email – and a pretty informal email at that – from an FAA representative describing the FAA’s policy. As we noted back then, it didn’t look much like an official agency action
And that, as it turns out, is what the Court thought, too. It concluded that the challenged email wasn’t a formal decision, it didn’t reflect any final FAA decisionmaking, and it didn’t really have any legal consequences (notwithstanding the email’s ominous and threatening tone). In a terse two-page order, the Court shot the appeal down.
While the usual flight paths are available for reconsideration or appeal to the Supremes, we think it unlikely that we’ll see the case winging in that direction: the probability that this decision might get flipped would appear to be somewhere between zero and nil. So this appeal has crashed and burned. But you never know. If the case takes back off, we’ll let you know.
